contribute more of its own work to the article, as it had apparently done in its earlier related stories. Nor do
the respondents dispute that the author of Fin24 5 simply copied from Moneyweb 5 and had no regard for the
radio interview or the transcription of the interview.
[130] Even though Fin24 5 referred twice to Moneyweb, it seems that the article was likely to be a substitute for
Moneyweb 5. The provision of a hyperlink does not by itself discharge the burden of proving "fair dealing".
[131] In my judgment, the respondents have not proved that their publication of Fin24 5 constitutes "fair dealing"
within the meaning of section 12(1)(c)(i).
Unlawful competition
[132] Moneyweb contends, in addition to its submissions on copyright, that Fin24's publication of the seven articles
constitutes unlawful competition
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at common law. Its case is that Fin24 has unlawfully sought to derive an advantage over one of its key
competitors (Moneyweb), "by making impermissible use of the time, effort, money and skill expended by
Moneyweb to produce the articles concerned".
[133] It seems to me that this argument seeks to blur the lines between copyright and other forms of unlawful
competition. What is permissible use will depend on what copyright law permits.
[134] I am also aware of the warning issued by Schutz JA in Payen Components SA Ltd v Bovic CC:47
"In my opinion a Court should be wary of allowing the sharp outlines of these two established branches of the law of
unlawful competition [copyright and passing off], evolved through long experience, to be fudged by allowing a vague
penumbra around the outline. Unlawful competition should not be added as a ragbag and often forlorn final alternative
to every trade mark, copyright, design or passing off action. In most such cases it is one of the established categories
or nothing."
[135] Accordingly, Moneyweb's claim of unlawful competition cannot succeed where its claim of copyright
infringement has failed.
Order
[136] It remains for me to consider an appropriate order. There are two issues that require consideration: the
interdict and costs.
[137] As for the interdict, Mr Puckrin points out that section 6 of the Act distinguishes between reproduction and
publication. It is the reproduction of Moneyweb 5 that constitutes an infringement of copyright.48 I n
publishing Fin24 5, Moneyweb 5 was reproduced. Reproduction is not an ongoing act. In any event, whatever
harm Moneyweb has suffered, it is likely that the harm is no longer continuing. Accordingly, an interdict is not
warranted.
[138] Regarding costs, it seems to me that the respondents have been substantially successful in defending the
claims against them. They have not been successful in some of the significant defences raised. The applicant,
on the other hand, has succeeded in one claim and may yet be able to establish that it has suffered damages
as a result of the publication of Fin24 5. On balance, the respondents have been substantially more successful
than the applicant. I am of the view that it would be fair to order that Moneyweb pay 70% of the
respondents' costs.
[139] Accordingly, I make the following order:
(a)
It is declared that the respondents' publication of the article of 16 January 2013, entitled "Amplats: CEO
cites JSE rules", constituted an infringement of the applicant's copyright under the Copyright Act 98 of
1978;
Page 232 of [2016] 3 All SA 193 (GJ)
(b)
It is declared that the respondents are liable to the applicant for the damages suffered by it as a result
of the unlawful publication of the said article:
(i)
The quantum of the damages to be paid, including the quantum of any additional damages
p a y a b l e p u r s u a n t t o section 24(3) o f t h e C o p y r i g h t A c t 9 8 o f 1 9 7 8, w i l l s t a n d o v e r f o r
determination in a damages enquiry;
(ii)
For purposes of the damages enquiry, the applicant is to file a declaration particularising the
damages claimed within 20 days of the date of this order and the respondents are to file a plea
within 20 days thereafter;
(iii)
The Rules of Court applicable to the exchange of pleadings and the process of discovery will apply
in this regard;
The applicant is to pay 70% of the respondents' costs of this application, including the costs of two
Counsel.
For the applicant:
P Ginsburg SC, S Budlender and G Marriott instructed by Fluxmans Incorporated
For the respondent:
CE Puckrin SC and K Spottiswoode instructed by Werksmans Attorneys
(c)